THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.
Plaintiff,
INTERNAL REVENUE SERVICE,
Defendant.
____________________________________)
Civil Action No. 13-1559-EGS
PLAINTIFF MOTION FOR LIMITED DISCOVERY
Plaintiff Judicial Watch, Inc. Judicial Watch counsel and pursuant the Court
orders July 10, 2014 and August 14, 2014, respectfully moves the Court for order
permitting limited discovery.
Pursuant LCvR 7(f), Judicial Watch also respectfully requests hearing held this motion.
Defendant Internal Revenue Service the IRS the agency had two opportunities
provide the Court with the information required the July 10, 2014 order and submitted total seven declarations.
Despite these two opportunities and multiple declarations, the IRS has
failed provide important, material information about how missing e-mails former IRS
Exempt Organizations Director Lois Lerner laptop may retrieved from other sources and
what efforts the IRS has undertaken identify and obtain the missing emails from these sources. light the IRS failure provide this important, material information, Judicial Watch
respectfully requests that allowed obtain the information through limited discovery. good faith effort resolve this dispute, undersigned counsel requested August 25,
2014 that the IRS supplement its declarations under oath include the material information
omitted from the declarations.
The agency counsel represented that the IRS will not so.
The parties also met with Magistrate Judge Facciola August 25, 2014 try reach some
consensus over the missing records, but these efforts were unsuccessful.
Before filing this motion, Judicial Watch asked the agency counsel September 10,
2014 whether the IRS would consent limited discovery related the missing records and the
agency efforts retrieve them from other, available sources.
Attorneys for the IRS
represented they were not able provide response the time this motion was filed.
MEMORANDUM LAW
This litigation presents rare case which revelations about crashed hard drives
and missing e-mails, conflicting public reports about backup systems, and material omissions
the Court raise serious questions about agency compliance with FOIA.
Limited discovery needed answer these questions.
The parties appeared before this Court for status conference July 10, 2014,
after alarming news reports indicated that large quantity the records issue this FOIA
litigation were missing due alleged hard drive crash Ms. Lerner laptop.
Based
these reports, was apparent that the IRS had withheld material information from the Court and
Plaintiff for months.
During the July 10, 2014 status conference, the Court ordered the IRS
provide sworn declarations from agency officials describing what happened the laptop
which Ms. Lerner e-mails had been stored, how the missing e-mails may retrieved from
other sources, and what efforts, any, the IRS had undertaken obtain the missing e-mails
from those sources. its ruling, the Court explained:
[T]he declaration should also include information that may assist
the parties recovering the subject matter the lost e-mails from
other sources. think that highly relevant. there will
two main parts, and will the Lois Lerner part, and
will be, how get this information that been lost from other
sources, and that going highly relevant well, and that
also going inform the Court whether there need for limited
discovery.
July 10, 2014 Status Conference Trans. 38, lines 9-16; Minute Order, pt.
The
declarations were provided August 10, 2014.
The IRS submitted five sworn declarations August 11, 2014.
declarations, the IRS admitted that Ms. Lerner hard drive had been destroyed. the
However, all
five declarations omitted information required Part the Court order how retrieve
the missing e-mails from other sources.
Dkt. No. (July 10, 2014 Minute Order); Transcript July 10, 2014 Status Hearing Trans. 38, lines 9-15; Minute Order subpart (2). result, the Court sua sponte ordered the IRS August 14, 2014 supplement its declarations August 22, 2014. part its second order, the Court again directed the IRS provide
information about how the missing e-mails may retrieved from other sources, such Ms.
Lerner BlackBerry, iPhone iPad.
August 14, 2014 Minute Order.
The second set
declarations, submitted the IRS August 22, 2014, also failed address how the missing
e-mails could retrieved from other sources and produced Judicial Watch. August 22, 2014 telephone conference, IRS attorneys informed Judicial
Watch about the existence electronic data backup system that stores all government records the case catastrophic event.
The agency attorneys also asserted that the Treasury
The parties were also ordered meet and confer with Magistrate Judge Facciola September 10, 2014, discuss
how the lost e-mails are retrievable, all, from other sources. Dkt. No. (July 10, 2014 Minute Order); Trans. 39. While Judicial Watch would like able disclose the Court the discussions held between the
parties before Judge Facciola, agency attorneys have notified counsel that the IRS takes the position that the meet
and confer session was confidential settlement discussion that should not publicly disclosed.
The backup system described the IRS attorneys similar what government experts have identified
discussions with Judicial Watch attorney component the Continuity Government program. This
program apparently includes offsite backup system (in addition the agency regular onsite backup storage
systems) created for purposes avoiding loss essential data the event catastrophic event. See also
September 2014 letter from House Subcommittee Chairman Jim Jordan, attached Ex.
Inspector General for Tax Administration TIGTA looking into whether some these
backup tapes may include the missing e-mails, but that the IRS would not search these tapes
because doing would allegedly too onerous.
When Judicial Watch requested that the IRS
supplement its declarations include this material information, the IRS refused.
Pursuant
the Court orders and instructions the July 10, 2014 status conference, this new information
precisely the kind material information that would assist the Court identifying other
potential sources for the missing e-mails. also the type information that the Court stated
would helpful determine what discovery may appropriate.
Trans. 38. date, Judicial Watch has learned that least three different backup systems
exist that may contain the missing e-mails.
See September 2014 letter from House
Subcommittee Chairman Jim Jordan, attached Ex. pp. 1-2.
The IRS did not identify any these systems its seven declarations. The following summary the piecemeal and
often contradictory information made public the IRS date, but omitted from its seven
declarations: June 20, 2014, IRS Commissioner John Koskinen testified under oath
that the IRS confirmed that backup tapes from 2011 longer exist
because they had been recycled pursuant the agency six-month
retention cycle. Id. July 2014, almost one week before the status conference held this
Court, IRS Legislative Affairs Director Oursler learned that backup tapes
from the six-month retention cycle from 2011 indeed exist. Id. July 17, 2014, IRS Deputy Associate Chief Counsel Thomas Kane
testified under oath during transcribed interview before Congress that September 10, 2014, the IRS filed unsworn notice informing the Court that TIGTA has taken possession unidentified number exchange server drives and that the IRS has been informed TIGTA that does not
object the IRS resuming its investigation the missing emails. Attached the notice was letter from IRS
Legislative Affairs Director Leonard Oursler, dated September 2014, that the IRS submitted Congress. Dkt.
No. (Sept. 2014 Notice Internal Revenue Service). The notice just another example the piecemeal
and inadequate information provided the IRS response the Court orders.
certain backup recovery tapes from the six-month retention schedule may
still exist. Id. August 22, 2014, IRS attorneys admitted Judicial Watch that
government-wide backup system exists the event catastrophic
event. The IRS attorneys also disclosed that TIGTA was looking
several these backup tapes. September 2014, Subcommittee Chairman Jim Jordan reported that
760 exchange server drives from the IRS have been located and may
contain least some the missing records. Ex.
Based information made public Subcommittee Chairman Jordan, these 760 exchange
server drivers are different and distinct from the backup tapes that were allegedly destroyed
pursuant the IRS six-month retention policy.
Id.
The existence these additional storage systems for IRS records and the IRS
failure disclose these systems the Court deeply troubling.
They raise serious questions
about the IRS candor responding the Court orders and its good faith processing
Judicial Watch FOIA requests.
Even more troubling that the IRS appears have
knowingly omitted this crucial information from its declarations, two which were submitted IRS Counsel Thomas Kane, who had knowledge least some backup tapes early July
17, 2014.
Id., Dkt. Nos. 26-5 (August 11, 2014 Kane Decl.) and 28-2 (August 22, 2014
Kane Decl.).
While may possible retrieve Ms. Lerner missing e-mails from alternative
sources, the IRS has repeatedly demonstrated unwillingness disclose information about
backup systems and other alternative sources for the e-mails. appears unlikely that the IRS
will disclose this all-important information unless Judicial Watch able cross-examine and
ask probing, follow-up questions knowledgeable agency witnesses. result, limited,
focused discovery necessary enable Judicial Watch and the Court obtain this obviously
important information.
Discovery also necessary identify the universe other missing records
responsive Judicial Watch FOIA requests. addition Ms. Lerner e-mails, Judicial
Watch FOIA requests also seek internal e-mails other IRS officials involved the targeting Tea Party groups, well communications between IRS officials and persons outside the
agency regarding the targeting.
According various reports, other IRS officials also
experienced hard drive crashes, causing their records missing.
information conflicting.
Once again, the available
News reports Friday, September 2014 indicate that records
are missing for five other IRS officials involved targeting Tea Party groups.
however, has reported that records eight officials are missing.
TIGTA,
See House Committee
Oversight Government Reform Press Release, dated September 2014, attached Ex. see
also Ex. fn.
This information particularly important since e-mails already produced this
litigation e-mails that fueled vigorous and continuing congressional inquiry into Ms. Lerner
missing e-mails demonstrate that Ms. Lerner communicated with officials the U.S.
Department Justice about prosecuting nonprofit groups that allegedly lied about their
political activities seeking tax exempt status. See E-mails from/to Lerner and Flax, May and 2014 (Bates stamped JW1559-00105) and Lerner e-mails TIGTA report, (Bates stamped
JW1559-001304 001305), attached Ex. House Committee Oversight and Reform Ltr.
Attorney General Eric Holder, dated April 23, 2014, attached Ex. Identifying alternative
sources from which Ms. Lerner missing e-mails may retrieved will also help identify
alternative sources from which the missing e-mails other IRS officials involved the
targeting Tea Party groups may retrieved.
http://observer.com/2014/09/will-orange-be-the-new-black-for-irs-chief-lois-lerner (September 2014);
http://hosted.ap.org/dynamic/stories/U/US_IRS_LOST_EMAILS?SITE=APSECTION=HOMETEMPLATE=D
EFAULTCTIME=2014-09-05-15-47-22 (September 2014)
The Internal Revenue Manual contains specific guidelines for ensuring that IRS
record retention policies comply with the Federal Records Act.
See C.F.R. 1236.10(1).
These guidelines provide insight how the missing e-mails should have been retained and
where they may now located.
They also speak directly the type information required the Court July 10, 2014 order.
Some the relevant provisions are:
Internal Revenue Manual, 1.10.3.2.3 (07-08-2011), Emails possible
Federal Records. All federal employees and federal contractors are
required law preserve records containing adequate and
proper documentation the organization, functions,
policies, decisions, procedures, and essential transactions
the agency. Records must properly stored and preserved,
available for retrieval and subject appropriate approved
disposition schedules. Please note that maintaining copy email its
attachments within the IRS email Outlook application
does not meet the requirements maintaining official
record. Therefore, print and file email and its attachments
they are either permanent records they relate specific
case.
Internal Revenue Manual, 1.15.6.8 (06-01-2010), Security Electronic
Records. IRS offices will implement and maintain effective
records security program that incorporates the following:
Provides for backup and recovery records
protect against information loss corruption.
Internal Revenue Manual, 1.15.6.9 (3-27-2014), Retention and Disposition Electronic Records. The IRS Records Officer the liaison with NARA and
customer organizations for ensuring that electronic records
and the related documentation are retained for long
needed the IRS. Records created within e-mail systems, which meet the
criteria federal record, are subject the same retention
periods the paper hard-copy versions. Therefore, these
records must retained electronically according the
NARA-approved disposition authority printed and
associated with the appropriate recordkeeping system.
Temporary e-mail records can deleted only when they are
eligible for destruction when they have been printed and
associated with the appropriate recordkeeping system
Not one the declarations submitted the Court discusses this plainly relevant information.
10.
Nor does single one the IRS declarations speak to: (1) the status the
backup tapes the alleged six-month retention schedule; (2) the 760 exchange server drivers; (3)
the catastrophic backup system disclosed Judicial Watch the August 22, 2014 telephone
conference; (4) whether search being done for records assistants who monitored Ms.
Lerner e-mail communications. The IRS unwillingness provide this crucial information
information that the IRS was ordered disclose this Court, under oath, more than two months
ago demonstrates that the only way the information ever likely provided discovery
allowed and Judicial Watch permitted cross-examine agency witnesses knowledgeable about
these subjects.
11.
While not ordinary occurrence, discovery FOIA cases permissible.
See,
e.g., Landmark Legal Found. Envtl. Prot. Agency, 959 Supp. 175 (D.D.C. August 14,
July 19, 2011 e-mail from Lerner Carl Froehlich and Oct. 16, 2012 e-mail from Lerner Troy Paterson, Oct.
2012 (Bates stamped JW1559-003384), attached hereto Ex.
Mr. Kane second declaration identifies BlackBerry used Ms. Lerner that was wiped clean and removed
scrap for disposal June 2012, but fails disclose what happened the information stored the device even
that second BlackBerry was destroyed during the relevant time period for lost records November 2010. Dkt. No.
28-2 (August 14, 2014 Kane Decl.) This just one more example incomplete information provided
the agency and serious allegations destruction information after Congressional inquiries began result
information disclosed Judicial Watch this litigation. Ex. see also http://youtu.be/z8PNIfg1fDs.
2013) (RCL) (permitting limited discovery address the adequacy the search); Citizens for
Responsibility and Ethics Washington Office Admin., No. 07-964 (D.D.C. Feb. 11, 2008)
(CKK) (order authorizing jurisdictional discovery FOIA/PRA case); Public Citizen Health
Research Group Food and Drug Admin., 997 Supp. 56, (D.D.C. 1998) (RCL)
(permitting discovery for investigating the scope the agency search for responsive
documents, the agency indexing procedures, and the like addition, when there
evidence some wrongdoing such material conflict agency affidavits, Long U.S.
Dep Justice, Supp. 205 (N.D.N.Y. 1998), limited discovery has been allowed.
Citizens for Responsibility Ethics Washington Nat Indian Gaming Comm 467
Supp. 40, (D.D.C. 2006) (RMC).
12.
The unusual circumstances this case plainly warrant limited, focused discovery. order for this case fairly adjudicated, Judicial Watch and the Court require clear and
thorough understanding what records are missing, how the missing records can obtained
from alternative sources, and what efforts the IRS has has not undertaken obtain the
missing records from these other sources.
answers these important questions.
The public interest also demands clear, thorough
Because the IRS has been unwilling provide this
information any its seven declarations and because the Court deemed this information
highly relevant, Judicial Watch respectfully requests that permitted obtain the
information through written discovery and depositions knowledgeable agency witnesses
some other, court-directed discovery that the Court deems just and appropriate.
WHEREFORE, Judicial Watch respectfully requests that its motion for limited discovery granted.
Dated:
September 17, 2014
Respectfully submitted,
JUDICIAL WATCH, INC.
/s/ Ramona Cotca________________
Paul Orfanedes, D.C. Bar No. 429716
Ramona Cotca, D.C. Bar No. 501159
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Attorneys for Plaintiff